The main legal point established in the judgment is the confirmation of the conviction under Section 138 of the Negotiable Instruments Act based on the evidence presented and the legal presumption of dishonor.

ORDER

A.V Ravindra Babu, J. - Challenge in this Criminal Revision Case is to the judgment, dated 16.02.2010 in Criminal Appeal No.7 of 2008, on the file of I Additional Metropolitan Sessions Judge, Visakhapatnam, ('Additional Metropolitan Sessions Judge' for short), whereunder the Additional Metropolitan Sessions Judge dismissed the Criminal Appeal confirming the conviction and sentence imposed against the accused under Section 138 of Negotiable Instruments Act ('N.I. Act' for short) in C.C.No.101 of 2004, on the file of III Additional Chief Metropolitan Magistrate, Visakhapatnam at Gajuwaka ('Additional Chief Metropolitan Magistrate' for short).

2. The parties to this Criminal Revision Case will hereinafter be referred to as described before the learned III Additional Chief Metropolitan Magistrate, Visakhapatnam at Gajuwaka, for the sake of convenience.

3. The case of the complainant, in brief, according to the averments set out in the complaint filed before the learned III Additional Chief Metropolitan Magistrate, Visakhapatnam, alleging the offence under Section 138 of N.I. Act, is that the complainant and accused had acquaintance with each other. The accused borrowed a sum of Rs.50,000/- on 11.04.2002 to clear his sundry debts from the complainant, agreeing to repay the same with interest at 24% per annum and executed a promissory note on the same day in favour of the complainant. Later, when the complainant insisted and demanded for repayment of loan amount, accused issued a cheque bearing No. 359437 for Rs. 66,000/-towards principal and interest on 14.08.2003 of his account drawn on UCO Bank, Balacheruvu Branch, Visakhapatnam Steel Plant. The accused promised to the complainant that he could realize the cheque amount by depositing the same in his account. The complainant deposited the cheque in his account at the request made by the accused on 21.08.2003 which was returned as 'insufficient funds'. He received the cheque returned memo, dated 22.08.2003. He waited for one month and again submitted the cheque in his account on 23.09.2003 and in that occasion also it was returned as 'insufficient funds' along with returned memo, dated 24.09.2003. Again the complainant deposited the said cheque for collection in the same bank on 16.10.2003 and in that occasion also it was returned as 'insufficient funds' vide cheque returned memo, dated 26.10.2003. Later, the complainant got issued a registered statutory notice on 28.10.2003 demanding the accused to make good of the cheque amount. The notice sent to the residential address of the accused was returned, as the accused had not claimed. Hence, the complaint.

4. The learned Additional Chief Metropolitan Magistrate took cognizance of the complaint under Section 138 of N.I. Act. After appearance of the accused and after compliance of Section 207 of the Code of Criminal Procedure ('Cr.P.C.' for short), the accused was examined under Section 251 of Cr.P.C. with reference to the allegations in the complaint for which he denied the same, pleaded not guilty and claimed to be tried.

5. During the course of trial, on behalf of the complainant, P.W.1 was examined and Ex.P.1 to Ex.P.10 were marked. After closure of the evidence of complainant, accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances in the evidence let in by the complainant, for which he denied the same and stated that he need time to settle the matter. The accused did not adduce any defence evidence.

6. The learned Additional Chief Metropolitan Magistrate on considering the oral as well as documentary evidence, found the accused guilty of the offence under Section 138 of N.I. Act, convicted him under Section 255(2) of Cr.P.C. and after questioning him about the quantum of sentence, sentenced him to suffer simple imprisonment for six months and to pay fine of Rs.500/- in default to suffer simple imprisonment for 15 days. Felt aggrieved of the aforesaid conviction and sentence, the unsucce